October 12, 2006

"... and they might be there at the trial. The buttons don't seem to add much to what the jury will derive from seeing the family seated behind the prosecution bench."

So said Chief Justice John Roberts at oral argument yesterday. The question was whether a federal court on habeas should overturn a murder conviction because during the trial, members of the victim's family sat in the courtroom wearing buttons showing a picture of the victim. The standard on habeas -- after the revisions in the Antiterrorism and Effective Death Penalty Act -- is whether the state trial judge's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” The 9th Circuit overturned the conviction of Matthew Musladin, and I think we know how the Supreme Court will decide this, given the difficulty of meeting the standard.

The linked article is David Savage's piece in the L.A. Times, but you can read the whole transcript here. I found it interesting that Justice Kennedy toyed with the idea of using the case to "clearly establish" the law for future cases:

Supposing we all thought that this practice in this particular case deprived the defendant of a fair trial, but we also agreed with you that AEDPA prevents us from announcing such a judgment. What if we wrote an opinion saying it is perfectly clear there was a constitutional violation here, but Congress has taken away our power to reverse it. Then a year from now, the same case arises. Could we follow -- could the district court follow our dicta or could it -- would it be constrained to say we don't know what the Supreme Court might do?

The lawyer for the state quickly reminded him that the Court in Williams v. Taylor (second link, above) said that only holdings count toward clearly establishing the law for habeas purposes and that Musladin will only win this case if the law was already clearly established. Perhaps Kennedy can find some way to extract the Court from this bind, which severely undercuts the role of the Court in saying what the law is at precisely the point where the statute -- AEDPA -- makes the Court's articulation of the law crucial.

ADDED: Linda Greenhouse's report on the argument is much better than what is at the first link. She explains the federalism problem extremely well:

The Supreme Court has had various things to say over the years about the unduly prejudicial impact of such practices as placing a defendant in shackles or in prison garb in the presence of the jury. But it has never said a word about a murder victim’s relatives wearing buttons.

So, did the federal appeals court in this case, the United States Court of Appeals for the Ninth Circuit, have the authority to extrapolate from the old Supreme Court precedents to the new situation? Did it have the authority to apply one of its own cases, a 1990 ruling that overturned a rape conviction because female spectators at the trial had worn buttons declaring “Women Against Rape”?...

Suppose, Justice Anthony M. Kennedy asked Mr. Ott, that there was no Supreme Court ruling on a particular issue, but that the courts of five federal appellate circuits had looked at the issue and had all reached the same conclusion. “And they all say, ‘We think the general rule of the Supreme Court is as follows,’ ” Justice Kennedy said, asking: “Isn’t that entitled to some weight? You’re not supposed to cite that when you go to the Sixth Circuit court or you go to the state court?”

Such a decision, even if widely shared among the appeals courts, could not be considered “clearly established” law, Mr. Ott replied. “To redefine or shape this court’s holdings beyond the face of those holdings, our position is that cannot be done with state or circuit law,” he said.

Read the whole thing, especially if you haven't thought about AEDPA before and need to get a grip on it.

20 comments:

I know this is not relevant to the button issue, but, for what it is worth, according to NPR yesterday, the D. got into an residential altercation with the victim, shot the victim in the back, and when the victim hid underneath a car (in his garage?) ran after him and delivered the fatal gunshot there.

The NPR story also indicated that the family members did not wear the 2 inch buttons (diameter? radius?) during the duration of the entire trial, but, I think, for only a day or two and took them off when the DA asked them to. I could not tell from the story whether the image on the buttons was distinct or even large enough to be discerned from a distance (i.e. the jury box).

Since the mid-70s, we've all become human billboards. Courts, like some schools, could conceivably end up barring all garments containing symbolic messages and require visible tattoos to be covered up as well. What if the D., a Muslim, is on trial for murdering a Christian, and the victim's family members wear T-shirts or jewelry with crosses on them? What if they all have books that are obviously Bibles on their laps?

This is pretty interesting. Kennedy's point raises the issue whether the applicable habeas law was frozen at the time to the Act.

If the Supreme Court simply reviews whether the lower court applied "clearly established Federal law, as determined by the Supreme Court of the United States," then the test is backward-looking only. How would the Supreme Court ever have the opportunity to clarify or change (heh) the prior law, if all it could do is pass on whether lower courts had properly applied the prior law?

The problem is with the "clearly established" phrase, which limits the Court from its usual surprising announcements of what existing law means. It will be interesting to see how they grapple with this constriction on their power...

"Perhaps Kennedy can find some way to extract the Court from this bind, which severely undercuts the role of the Court in saying what the law is at precisely the point where the statute -- AEDPA -- makes the Court's articulation of the law crucial."

My understanding is that the Court still gets to say what the law is, and still gets to make up new rules if it wishes, when a case comes to it on direct appeal. AEDPA just says that the Court can't make new law in a habeas proceeding in order to overturn a state court that has reasonably decided the case based on currently existing law. That doesn't seem like such a severe undercut to me.

Not all victims have families, and we nonbreeders are regularly discriminated against in our society by all those bleeding hearts who think a person's worth is directly proportional to to the number of ozone-makers he has fathered.

I would say it's fair to let a family-free defendant hire folks to show up wearing buttons if family members of a defendant are permitted to do it.

I read an article which pointed out that had the trial been concerning say assault with intent to kill then the victim of the alleged assault would be entitled to attend the trial. What is the difference?

Jim: we nonbreeders are regularly discriminated against in our society by all those bleeding hearts who think a person's worth is directly proportional to to the number of ozone-makers he has fathered.

Hopefully, common sense will prevail, and the murder conviction will not be thrown out because the family members were wearing buttons. Whatever happened to evidence and witnesses, sheesh. Are juries so feeble-minded that buttons would make night into day, and a innocent man into a guilty one?

What this shows is that those conservatives who argued during the passage of anti-terror legislation that it would not have an impact besides terror cases did not know what they were talking about.

Clearly this case has nothing at all to do with terrorism, yet the discussion is revolving around abridgements of rights that were part of the whole package that was shoved down our throats because of 9/11.

We've become so used to buying the argument that 'because we need this to fight terrorism...' that we have given up basic legal protections at all levels of the justice system, from privacy in our homes all the way up to how trials are conducted.

Ann and Eli Blake - what are you talking about - how does the Anti-Terrorism and Effective Death Penalty act have anything to with this case? I think if the defendant's lawyer wanted to raise the issue of buttons influencing the jury (maybe this is a pet peeve of his?) to get his client out of jail he could try under the law established BEFORE the revisions. Please explain what I am missing.

Personally, I once sat on a murder trial and the defendants girlfriends and their babies (presumably his) showed up every day. It DID come up during deliberation about "those poor babies," but still, EVERYONE was able to look past what felt to me like an obvious attempt to manipulate our emotions from the defendant's table.

Kennedy's concern about the catch-22 quality of ADEPA is overstated. In effect, it means that any constitutional rule has to be announced on direct appeal from a conviction, rather than in a collateral proceeding such as habeas. Almost as a routine now, the "death penalty" bar seeks cert in most if not all cases involving a death sentence. It's not as if the SCOTUS is lacking in any opportunity to address these substantive issues on direct appeal.

That the "button" case has made its way to the SCOTUS is a pretty good indication of the pathetic state of the Court's "death penalty" jurisprudence. It's a jerry-built, contradictory mess. Blackmun's comment about being finished with "tinkering with the machinery of death" was right, albeit in a different sense that Blackmun intended, since that's all the Court is doing in these cases -- just "tinkering" at the margins. The Court keeps trying to control a penalty, the point of which is to be brutal and harsh pour encourager les autres, by norms that are exactly the opposite. The various procedural patches the Court invents from time to time just make the whole thing more of a mess, and to boot, lack any textual source in the Constitution other than the Court's substitution of its view for the process that is due for whatever the state legislatures have provided. Small wonder it hasn't accomplished much, except where the Court can issue a categorical diktat -- no executions of juveniles, mentally retarded, etc.

The "button" case captures it all perfectly -- the tinkering and the trivia, in sharp contrast to the stakes. The death penalty raises a lot of profound issues. The problem is that they are not constitutional issues, given the several places where the constitutional text itself contemplates a death penalty. It's just another unconvincing body of jurisprudence, inherently standardless because not rooted in any real source in the constitution, that swings back and forth as the membership of the Court has changed. It will be interesting to see whether, with the addition of CJ Robers and J Alito, the Court will try to back out of its self-assigned role of social policy maker for a nation that seems quite resistant to the Court's policy making intrusions in this as in other areas.

I don't know why we even bother with trials anyway. We all know that some people are victims of society and therefore are, or should be, entitled to do anything they like in order to obtain redress, and that other people are oppressors and therefore deserve whatever the oppressed decide to hand out to them.

This is just a case of the Underdog properly blowing away an Overdog, right? What's the big deal?

Richard Dolan said... Kennedy's concern about the catch-22 quality of ADEPA is overstated. In effect, it means that any constitutional rule has to be announced on direct appeal from a conviction, rather than in a collateral proceeding such as habeas.

True enough. But if the first time it is raised is in the habeas process, it should be ignored? Crim Law and Crim Pro is a long time ago for me but I thought a number of state criminal matters reach the federal courts via habeas. I just googled Miranda and it was not habeas case, but if it had been under the AEDPA should the court just said in dicta "Geez we'd love to do something here but we can't, so somebody bring this on direct appeal so that it can then be the clearly established rule."

What if it were a capital case?

I am not saying that the button issue rises to that level but something down the road might. If I am just whiffing on something here I apologize.

The problem with retroactivity on habeas is that you run the risk of creating a Great Big Mess. Imagine if the Miranda rule had been applied retroactively on habeas. All of a sudden, just about everybody who was in prison would be able to bring a successful habeas claim (since, after all, they never received a Miranda warning...). Obviously this isn't such a big worry in this case, but you can't have a rule where only "minor" changes can be applied retroactively. That would just be goofy.

IIRC the Court had basically arrived at this conclusion on its own in Teague v. Lane, and AEDPA didn't really change things much.

There is a strong presumption that anything that reaches the Supreme Court from the 9th Circuit is going to get reversed. Greenhouse tellingly quotes Musladin's attorney arguing to the Justices that the 9th Circuit was "concerned about the risk [of unfair prejudice], not the reality."

The reality is more like what Cat describes above. In quite a few criminal cases that I've tried, the defendant's family and friends have made their presence and support very clear to the jury. In one case (fortunately not one of mine) they choreographed shaking their heads and miming stock expressions of disbelief during the testimony of the state's leading witness. Of course the judge admonished them to stop, and the effect on the jury was the opposite of what they intended, but this is a two-way street. Attempts to influence the jury from the audience are as likely to come from the defendant's side -- it's just that the jury is more likely to respond positively when it's the prosecution side doing it.

jakek: One thing AEDPA changes that's really strongly presented in this case is whether a rule can become established without the participation of the Supreme Court. Under Teague, arguably, the work of the Courts of Appeals could be enough to make a rule not "new" anymore. Under AEDPA, unless the Supreme Court takes a case -- and it has discretion to stay out of whatever it wants -- a rule, no matter how strongly established at the federal appellate level, never becomes applicable to state cases through habeas review. This is a huge power redistribution toward the Supreme Court within the federal system. Teague already did much of that work, admittedly, but AEDPA is explicit about writing out the appellate courts with respect to the rules that affect state court cases.

AEDPA not only explicitely changed the standard to "Supreme Court precedent" for clearly established law, but seemed to send a message to appellate courts (the 9th Cir. excepted) that a more deferential standard should be employed. This case presents the problem identified by Justice O'Conner in Williams v. Taylor, 529 U.S. 362,408(2000)("[I]t will often be difficult to identify separately those state-court decisions that involve an unreasonable application of a legal principle (or an unreasonable failure to apply a legal principle) to a new context. Indeed, on the one hand, in some cases it will be hard to distinguish a decision involving an unreasonable extension of a legal principle from a decision involving an unreasonable application of law to facts. On the other hand, in many of the same cases it will also be difficult to distinguish a decision involving an unreasonable extension of a legal principle from a decision that "arrives at a conclusion opposite to that reached by this Court on a question of law," supra, at 1519." Although AEDPA does restrict petitioner's likelihood of getting relief, it did reverse the trend of habeas becoming a "super appeal", one last chance at finding a judge or panel who would have done things differently than the trial and state appellate courts. New Supreme Court standards can always be established on direct appeal (as pointed out earlier in thecomments) and, in this case, I find it hard to agree that the wearing of buttons in the courtroom rendered the trial so fundamentally unfair as to deny the defendant due process.